Reza Banakar, Max Travers (ed.). Law and Social Theory.

Hart Publishing, Oxford, 2013. Second edition.

Postcolonial Theories of Law

Eve Darian-Smith

14
Postcolonial Theories of Law
EVE DARIAN-SMITH

HIS CHAPTER EXPLORES postcolonial theories of law that today are

more widely recognised than ever before amongst scholars, political theorists and legal practitioners.1 Concerns with the postcolonial dimensions of
legal engagement have been present in some academic circles for over three decades.
However, the terms of the conversation have shifted over the years to apply more
aptly to current global geopolitical realities. Whereas the language of earlier postcolonial theorists was framed by the parameters of nation-state histories and interests
and primarily focused on the dialectic between colonising nations and the colonised,
contemporary scholars talk in terms of the relations between what is commonly
referred to as the global North and global South. This shift in terminology is important. It expands the lens of analysis from state-centred law in the context of specic
national colonial enterprises to a more global post-Westphalian worldview that takes
into account the postcolonial dimensions of a range of transnational, regional, state
and local legal engagements.2 It opens up the conversation to include the oppression
of all communities historically treated as racially and ethnically inferior to the colonising society, whether or not these communities self-identify as indigenous or think
of themselves as colonised. Moreover, it allows for rethinking contemporary legal
subjectivities by moving beyond Western versus non-Western binaries and acknowledging new forms of colonialism, such as the colonising of East Timor by Indonesia, Eritrea by Ethiopia, and the occupation of Palestinian territories by Israel.3
And nally it takes into account neocolonial activities by Western and non-Western
nations who exert economic and political power or soft imperialism over sites of
1
For general discussions on postcolonialism and law, see E Darian-Smith and P Fitzpatrick (eds), Laws
of the Postcolonial (Ann Arbor, University of Michigan Press, 1999); SE Merry, Colonial and Postcolonial
Law in A Sarat (ed), The Blackwell Companion to Law and Society. (Oxford, Blackwell Publishing, 2004);
A Roy, Postcolonial Theory and Law: A Critical Introduction (2008) 29 Adelaide Law Review 31557;
BS Chimni (ed), Special Issue: Third World Approaches to International Law (2011) 3(1) Trade, Law and
Development; P Dann and F Hanschmann (eds), Post-colonial Theories and Law (2012) No 2 Journal of
Law and Politics in Africa, Asia and Latin America 12327; N Seuffert and C Coleborne, Law, History and
Postcolonial Theory and Method (2003) 7 Law Text Culture 18.
2
See R Falk, Law in an Emerging Global Village: A Post-Westphalian Perspective (Ardsley, NY, Transnational Publishers, 1998).
3
See AT Weldemichael, Third World Colonialism and Strategies of Liberation: Eritrea and East Timor
Compared (Cambridge, Cambridge University Press, 2012).

247

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Eve Darian-Smith

former colonial control.4 Hence todays neocolonial activities includes the soft imperialism of Chinas industrial activities in Africa as well as the range of new wars in
regions such as the Congo that allow for an economy of extraction and exploitation
by Northern capitalists over local communities, often in collusion with local elites.5
Given the geopolitical expansion of the postcolonial lens, it is not surprising that
contemporary scholars of postcolonial law are interested in a wide variety of issues.
Some are concerned with exposing the underlying orientalist assumptions in national
and international laws that affirm essentialised constructions of cultural difference,6
and inform many countries awed polices of multiculturalism.7 Other scholars, many
from the global South, are critical of the Eurocentric underpinnings of international
law and argue for counterhegemonic forms of resistance.8 Still others are concerned
with the shifting conceptualisation of human in the context of new forms of neocolonialism and global racial oppression.9 And many focus on the historical and
contemporary oppression of indigenous peoples, be these in former settler nations
such as Canada, Australia and the United States,10 or in former colonies such as
Bolivia, Ecuador, Ghana, Kenya and South Africa.11
In trying to summarise postcolonial legal studies one is confronted by a variety of
problems. Most of the studies are interdisciplinary and present a range of perspectives. As a result, postcolonial theories of law do not form a coherent eld of inquiry.
According to one leading postcolonial scholar, Wes Pue, this is a good thing:
The spirit of the intellectual encounter between law and colonialism is of necessity
interdisciplinary, diverse in perspective, and unbounded. Scholarship in the eld does not
should nott into overly-neat disciplinary or perspective-bound categories. Individuals
drawn to postcolonial legal studies come to the enquiry with a variety of motivations and
an array of interests. Some seek primarily theoretical understanding, others encounter the
4
See K Nkrumah, Neo-Colonialism: The Last Stage of Imperialism (New York, International Publishers,
1966).
5
See M Kaldor, New & Old Wars: Organized Violence in a Globalized World, 2nd edn (Palo Alto,
CA, Stanford University Press, 2006); J Ferguson, Global Shadows: Africa in the Neoliberal World Order
(Durham, NC and London, Duke University Press, 2006).
6
See T Ruskola, Legal Orientalism (2002) 101 Michigan Law Review 179234; E Said, Orientalism
(New York, Vintage, 1978); R Falk, Achieving Human Rights (London and New York, Routledge, 2009); S
Pahuja, Decolonizing International Law: Development, Economic Growth and the Politics of Universality
(Cambridge, Cambridge University Press, 2011).
7
B Bhandar, The Ties That Bind: Multiculturalism and Secularism Reconsidered (2009) 36 Journal of
Law and Society 30126; CF Mars, Multiculturalism and Collective Rights in B de Sousa Santos (ed),
Another Knowledge Is Possible: Beyond Northern Epistemologies (London and New York, Verso, 2007)
75104.
8
BS Chimni, Third World Approaches to International Law: A Manifesto (2006) 8 International Community Law Review 327.
9
P Cheah, Inhuman Conditions: On Cosmopolitanism and Human Rights (Cambridge, MA and
London, Harvard University Press, 2006); S Esmeir, Juridical Humanity: A Colonial History. (Palo Alto,
CA, Stanford University Press, 2012).
10
See eg R Mawani, Colonial Proximities: Crossracial Encounters and Juridical Truths in British
Columbia, 18711921 (Vancouver, University of British Columbia Press, 2009); L Behrendt, Achieving Social
Justice: Indigenous Rights and Australias Future (Sydney, The Federation Press,2003); JR Cattelino, High
Stakes: Florida Seminole Gaming and Sovereignty (Durham, NC, Duke University Press, 2008); G Frank
and C Goldberg, Defying the Odds: The Tule River Tribes Struggle for Sovereignty in Three Centuries
(New Haven, Yale University Press, 2010); E Darian-Smith, New Capitalists: Law, Politics and Identity Surrounding Casino Gaming on Native American Land (Belmont, Wadsworth, 2004).
11
See eg J Comaroff and J Comaroff (eds), Law and Disorder in the Postcolony (Chicago, University of
Chicago Press, 2006).

Postcolonial Theories of Law 249

postcolonial as a part of sustained historical research, and others still feel a compelling sense
of urgency to develop practical strategies by which to confront the legacies of colonialism
on the ground. Many pursue a more or less mixed method of enquiry and do so from
multiple motivations.12

While not a coherent intellectual eld, what unites contemporary scholars of postcolonial lawirrespective of their focus or analytical framingis that they all draw
upon an intellectual legacy that emerged among non-Europeans in the decolonisation
movement post World War II and subsequently ltered into the Western academy
in the 1980s in the movement known as postcolonial studies.13 Hence underlying all
postcolonial legal scholarship is a concern with the endurance of historically structured racial and ethnic divides and correlative asymmetrical power relations between
the global North and global South, despite a growing appreciation of their respective
regional interdependencies. In other words, postcolonial legal theories are not about
legal processes in the time after colonialism, when a former colonised state gains independence and presumably a measure of self-determination. Rather, postcolonial legal
scholarship underscores that even when colonialism has officially ceased to exist, the
injustices of material practices endure over time and in many ways frame emergent
legalities and legal consciousness. As scholars are only too well aware, the endurance
of colonial legal logics is presentalbeit perhaps in new formsin countries formerly
colonised in Africa, Latin America, Asia and so on, as well as within former colonial
nations such as Britain, Australia, France, the Netherlands and the United States.14
Below I discuss two clusters of postcolonial legal scholarship that form theoretical
umbrellas under which specic sociolegal studies can be accommodated. These are
scholars engaged with the concept of legal orientalism and scholars identifying with
third world approaches to international law (TWAIL). I have chosen these two bodies
of scholarship because the rst underscores the enduring legacy of European legal
colonialism, and the second highlights the perspective of the global South in seeking
to confront that legacy within subnational, national, international and global contexts.
Obviously there exist other lines of inquiry that dovetail into these two clusters of
postcolonial legal engagement. For instance, the concept of legal pluralism underpins
each in various ways,15 as does the relationship between law and racism.16 But legal
pluralism and legal racism are not exclusive to colonial/postcolonial contexts and so
I treat these concerns as embedded within postcolonial theories of law rather than as
the central issue shaping each clusters theoretical focus.
12

WW Pue, Editorial for special issue (2003) No 1 Law, Social Justice and Global Development Journal

2.
13
The exact date at which postcolonial studies took off is hard to ascertain exactly. Scholars such as
WEB Du Bois, Franz Fanon, CLR James and many others were writing decades before postcolonial studies
was recognised in the Western academy in the 1980s and 1990s as a distinct intellectual theory and body
of literature.
14
One has only to think of the 2012 presidential election results in the United States to appreciate the
extent to which the logics of colonialism and plantation economics endures in contemporary American
society. As many commentators noted, those states voting for the Republican candidate, Mitt Romney, correlated to a large degree with the former southern states who practised slavery in the pre-civil war era, and
implemented the harshest Jim Crow laws discriminating against blacks and other minorities up until the
civil rights movement of the 1950s and 1960s.
15
See BZ Tamanaha, C Sage and M Woolcock (eds), Legal Pluralism and Development: Scholars and
Practitioners in Dialogue (Cambridge, Cambridge University Press, 2012).
16
See DF Da Silva, Toward a Global Idea of Race (Minneapolis, University of Minnesota Press, 2007).

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Eve Darian-Smith

Before engaging with the concept of postcolonialism and the sociolegal theories
that it has engendered, I want to mention briey the shifting landscape of geopolitical
power in the current era. These relations of power are very different from that of
previous centuries, which were based on the concept of sovereign nation-states operating autonomously in an international arena. This conventional model of state-based
power is often referred to as the Westphalian system of governance. This name refers
to the German town of Westphalia, where, in 1648, after thirty long years of war,
many European nations came together and agreed that each could claim autonomous
control over its respective territories and subjects. The modern concepts of nationstate, nationalism and sovereignty were inscribed in the Peace of Westphalia and
have enjoyed considerable epistemological, ideological and mythical prominence for
nearly four hundred years, particularly in the development of modern Euro-American
law.17 Moreover, these concepts historically provided justication for the imperial
strategies of European states and these states overseas oppression and exploitation of
colonised peoples.
Today the centre/periphery divide which assumes the West at the center and
the third world delegated to the periphery is now no longer seen as an acceptable
paradigm for modelling the realities of global economic and political power. Rising
powerful global cities and enclaves of extreme wealth contrast with impoverished rural
outskirts in many regions around the world. We see this phenomenon happening in
Africa, Asia as well as across Europe and the Americas. Today, rich Western nations
are experiencing deprivation and poverty formerly only seen in developing nations, and
developing nations now have political and economic elites on a par with their Western
counterparts. And all countries to varying degrees are experiencing the growth of
deluxe shopping malls, office blocks and gated communities alongside shantytowns,
refugee camps and impoverished communities.18 (See Figure 1.) Who are the colonisers
and who are the colonised is no longer as clear as it was only sixty years ago in the
wake of the decolonialisation movement of the mid-twentieth century.
In addition, since the 1990s there has been an extraordinary proliferation of nongovernmental organisations (NGOs), private philanthropic foundations and voluntary,
often faith-based, organisations around the world.19 These non-state actors, in conjunction with global economic bodies such as the International Monetary Fund (IMF)
and World Bank, are creating new forms of transnational governance and authority
that sometimes work in tandem with state interests and sometimes counter to state
interests. Moreover, these non-state actors raise all sorts of issues with respect to
accountability, dependency, governmental displacement, and the factors driving coun-

17
J Beard, The Political Economy of Desire: International Law, Development and the Nation-State (New
York and Abingdon, Routledge/Cavendish, 2006); R Joyce, Westphalia: Event, Memory, Myth in F Johns,
R Joyce and S Pahuja (eds), Events: The Force of International Law (New York, Routledge, 2011) 5568.
18
See JE Stiglitz, The Price of Inequality: How Todays Divided Society Endangers Our Future (New
York, WW Norton, 2012); JT Way, The Mayan in the Mall: Globalization, Development, and the Making
of Modern Guatemala (Durham, NC and London, Duke University Press, 2012); M Davis, Planet of Slums
(Brooklyn, NY, Verso, 2007).
19
A-M Slaughter, Breaking Out: The Proliferation of Actors in the International System in Y Dezalay
and BG Garth (eds), Global Prescriptions: The Production, Exportation, and Importation of the New Legal
Orthodoxy (Ann Arbor, University of Michigan Press, 2002) 1236; T Wallace, NGO Dilemmas: Trojan
Horses for Global Neoliberalism in L Pantich and C Leys (eds), The Socialist Register 2004: The New
Imperial Challenge (London, Merlin Press, 2004).

Postcolonial Theories of Law 251

Figure 1. Rochina Favela, Rio de Janerio, Brazil. Photograph by Alicia Nijdam. 21 March 2008.
This is one of the largest shantytowns in South America with over 200,000 inhabitants. There
are many such slums existing alongside modern high-rise buildings in cities of Brazil. Those
who live in these shanty towns prefer its prime location next to the city centre, as they can earn
a living being close to the city.

tries social agendas.20 According to James Ferguson, Social policy and nation-state
are, to a very signicant degree, decoupled, and we are only beginning to nd ways
to think about this.21 As a result, these contradictory socioeconomic recongurations
of power have fundamentally altered domestic relations within states, as well as profoundly altering the world of international relations that can no longer be conceived
solely in terms of interstate activities.
In the early decades of the twenty-rst century, the growing global inequalities
between rich and poor (as reected in the Occupy Movement in 2011), and the new
congurations of state and non-state power as demonstrated by the proliferation
of NGOs, have dramatically altered global assemblages of power and geopolitical
realities.22 We are, in short, in the process of having to reimagine modernist legal
geographies.23 For the purposes of this discussion, these phenomena suggest that the
20
See GW Wright, NGOs and Western Hegemony: Causes for Concern and Ideas for Change (2012)
22 Development in Practice 12334; see also SS Silbey, Let Them Eat Cake: Globalization, Postmodern
Colonialism, and the Possibilities of Justice (1997) 31 Law & Society Review 20736.
21
J Ferguson, The Uses of Neoliberalism (2009) 41 Antipode 16684, 168.
22
S Sassen, Neither Global Nor National: Novel Assemblages of Territory, Authority and Rights (2008)
1 Ethics & Global Politics 6179.
23
E Darian-Smith, Laws and Societies in Global Contexts: Contemporary Approaches (Cambridge,
Cambridge University Press, 2013).

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Eve Darian-Smith

implications of postcolonial theories of law are as relevant to the 99% of white people
living within wealthy Western nations as to darker-skinned peoples formerly colonised.

1 . D E F IN I N G A P O S T C O L O N I A L P E R S P E C T I V E

Postcolonial scholarship over the last thirty years has provided enormous insights into
understanding contemporary legal processes. A notable contribution to the eld is the
theoretical insight of Edward Said, who was a leading gure in postcolonial criticism
and whose book Orientalism (1978) established a long trajectory of critical thinking
about the subjugation of non-Western peoples. Specically, postcolonial theory reveals
the violence and the technologies of power involved in understanding concepts such
as modernity and capitalism as well as contemporary state, sub-state and trans-state
nationalisms.24 Moreover, postcolonial theory provides the intellectual bridge linking
historical colonial injustices to contemporary global asymmetries of economic, political and social power between a global North and global South. In short, postcolonial
theory provides the intellectual platform from which to identify, analyse and assess
what is encompassed by the term postcolonial law in the twenty-rst century.
Postcolonial studies, and postcolonial theory in general, is largely associated with a
rethinking of a dominant European historiography that places the West at the centre
of the world. Contrary to the assumption of European superiority, postcolonial studies
posits a plurality of cultural perspectives, concepts and legalities that do not correlate
to a hierarchy dominated by Western Christian values and scientic rationality. Associated with South Asian scholarship, subaltern and literary studies as well as analyses
of resistance, postcolonial studies emerged out of the global South in the 1980s and
gained an increasing presence in Anglo-European universities.25 With the proliferation
of postcolonial research, there was, and is still, much debate over the meaning and
scope of postcolonial terminology and its political agenda.26 Despite these ongoing
deliberations, it is helpful to turn to the most signicant implications of a postcolonial
perspective which mark it as distinctly different from, yet complementary to, other
critical investigations associated with critical race theory, critical legal theory, and postructuralist and feminist theoretical perspectives. This process will help to esh out
the contours of postcolonial studies and, at the same time, underscore its intellectual
lineage and relevance to contemporary legal analyses.
Postcolonial theory acknowledges and recovers the ongoing signicance of colonised
peoples in shaping the epistemologies, philosophies, practices, and shifting identities
24
U Baxi, Postcolonial Legality in H Schwarz and S Ray (eds), A Companion to Postcolonial Studies
(Oxford, Blackwell, 2000) 54055; GC Spivak, A Critique of Postcolonial Reason (Cambridge, MA, Harvard
University Press, 1999).
25
G Prakash, Writing Post-Orientalist Histories of the Third World: Perspectives from Indian Historiography (1990) 32 Comparative Studies in Society and History 383408; G Prakash, Can the Subaltern
Ride? A Reply to OHanlon and Washbrook (1992) 32 Comparative Studies in Society and History 16884;
R OHanlon and D Washbrook, After Orientalism: Culture, Criticism, and Politics in the Third World
(1992) 34 Comparative Studies in Society and History 14167; D Chakrabarty, Postcoloniality and the
Artiface of History: Who Speaks for Indian Pasts? (1992) 37 Representations 126.
26
P Williams and L Chrisman (eds), Colonial Discourse and Post-Colonial Theory: A Reader (New
York, Colombia University Press, 1994); H Schwarz and S Ray (eds), A Companion to Postcolonial Studies
(Oxford, Blackwell, 2000); A Loomba, Colonialism/Postcolonialism, 2nd edn (London and New York, Routledge, 2005); P Mongia (ed), Contemporary Postcolonial Theory: A Reader (New York, Bloomsbury, 2009).

Postcolonial Theories of Law 253

of dominant and taken-for-granted Western subjects and subjectivities.27 Postcolonial
scholars foreground the cultural and psychological relations between the former colonised and colonisers, whom, they argue, cannot be understood except in conjunction
with each other.28 Postcolonial theorists do not claim that colonialism was experienced
in the same way under different regimes, just as they recognise that today neocolonialism operates in very different ways from its earlier congurations. Nonetheless, while
paying attention to the details of specic contexts, postcolonial scholars agree that
in order to understand all contemporary histories of peoples and places, irrespective
of whether there historically existed in any given site an explicit colonial regime, it is
important to remain aware of the enduring presence of discourses that posit civilised,
progressive and lawful Europeans against barbaric, static and lawless native
populations.
According to these scholars, colonial assumptions of Western superiority endure
across time and undermine contemporary attempts to build more inclusive multicultural societies. This is because categories of racial difference were used to varying
degrees by colonial governments to gain power and control over locally subjugated
peoples.29 Today, despite claims of increasing acceptance of cultural diversity and
policies of multiculturalism, racial categories and racialised differences continue to
exist, though often in less overt manifestations.30 Moreover, according to many postcolonial theorists, these boundaries of difference are insurmountable, because the
psychological intersubjectivity between former colonisers and colonised constantly
invites re-representations of difference.31
Drawing on a variety of theoretical perspectivesincluding an Hegelian master/
slave dialectic, phenomenological essentialism, and psychoanalytical insights gleaned
from Franz Fanon and Jacques Lacanpostcolonial theorists such as Homi Bhabha,
Gayatri Spivak and Benita Parry bring to the fore complex understandings of how
oppressed peoples resist their oppressors and seek empowerment. In recognising processes of mutual desire and negation between the master and slave, postcolonial
scholars have had to grapple with alternative historical narratives and identities other
than those conventionally supplied by the West.32 The irony is that the process of
self-determination by peoples formerly colonised requires the adoption of European
knowledge, including concepts such as progress, development, individualism and
what it means to be human. It also means the use of Western forms of government,
state-building and, perhaps most importantly of all, European concepts of law. Thus,
according to a postcolonial perspective, all assertions of freedom and self-awareness
require elements of mimicry and voyeurism. As Douglas Robinson has noted:
27

See de Sousa Santos (ed), above n 7.

L Gandhi, Postcolonial Theory: A Critical Introduction (New York, Colombia University Press, 1998).
29
A Stoler, Rethinking Colonial Categories: European Communities and the Boundaries of Rule (1989)
31 Contemporary Studies in Society and History 13461; NB Dirks, From Little King to Landlord: Property
Law, and the Gift under the Madras Permanent Settlement (1986) 28 Contemporary Studies in Society and
History 30733.
30
DT Goldberg, The Threat of Race: Reections on Racial Neoliberalism (Oxford, Wiley-Blackwell,
2008); A Lentin and G Titley, The Crises of Multiculturalism: Racism in a Neoliberal Age (London, Zed
Books, 2011).
31
P Fitzpatrick, Passions Out of Place: Law, Incommensurability, and Resistance in Darian-Smith and
Fitzpatrick (eds), above n 2, 3960.
32
H Trivedi and M Mukherjee (eds), Interrogating Post-Colonialism: Theory, Text and Context (Shimla,
Indian Institute of Advanced Study, Rashrapati Nivas, 1996).
28

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Eve Darian-Smith

Postcolonial or subaltern scholars claim it is at once essential and impossible to forge a new
postcolonial identity: essential, because those colonial constructs were at once alien and
negative, because they came from the outside and destroyed much of value in the indigenous
cultures, and because an effective postcolonial politics requires the development of more
positive indigenous visions: but also impossible, because colonial discourse continues to
inform even these postcolonial attempts to break free of it, and tends to condition even the
imagination of a new (postcolonial) identity along old (colonial) lines.33

A prominent postcolonial theorist, Dipesh Chakrabarty, has responded to the ironies

of alterity by calling for the provincialising or decentring, of Europe and European
epistemological knowledge. Chakrabarty (and others) argue that non-Western knowledge has been historically ignored and precluded from historiographical accounts
of humanist understanding and intellectual endeavour.34 In an effort to critique the
Europe that modern imperialism and (third world) nationalism have, by their collaborative venture and violence, made universal, Chakrabarty urges scholars to write
into the history of modernity the ambivalences, contradictions, the use of force, and
the tragedies and the ironies that attend it.35
Nowhere in the histories of modernity has the use of force, and the tragedies and
the ironies that attend it been as obvious as they are in the context of legal engagement. European law, in a variety of ways, was the formal mechanism and institutional
frame through which many colonial governments oppressed and controlled indigenous
peoples throughout the eighteenth, nineteenth and twentieth centuries. Law, emblematic of Enlightenment rationalism, individual property rights and sovereign state
authority, provided the justication for domination and exploitation based on racial,
ethnic or religious inferiority. Of course, there were many varieties of legal imposition and not all of these were entirely done through force. In some cases, such as in
Africa, the imposition of European law sometimes involved co-opting native chiefs
and traditional procedures of arbitration and dispute resolution.36 In other cases, such
as Australia, the British declared upon their arrival there that the continent was terra
nullius or vacant of other humans. On the basis that native populations were thought
to be less than human, with no laws or social rules, they were often systematically
annihilated (see Figure 2). As a result, traditional local methods of peacekeeping and
legal negotiation were often overlooked or deliberately obliterated.
As postcolonial legal scholars often note, it is impossible to separate the laws set
up in colonial outposts from the laws developing back in the European motherlands.
Hence it can be said that nineteenth- and twentieth-century metropolises such as New
York, Paris, Belgium and London were always connected with and inuenced by their
nations colonial peripheries, be these geographically distanced outposts beyond state
boundaries such as in the Philippines, Algeria, the Congo or India, or socially and
politically isolated enclaves (such as native reservations) within it. Similarly, colonial

33
D Robinson, Translation and Empire: Postcolonial Theories Explained (Manchester, St Jerome Publishing, 1997) 19-20.
34
D Chakrabarty,. Provincializing Europe: Postcolonial Thought and Historical Difference (Princeton,
NJ, Princeton University Press, 2000).
35
D Chakrabarty, Postcoloniality and the Artiface of History: Who Speaks for Indian Pasts? (1992) 37
Representations 126, 2021.
36
M Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism
(Princeton, NJ, Princeton University Press, 1996).

Postcolonial Theories of Law 255

Figure 2. Mounted Police and Blacks (1852). Godfrey Charles Mundy. Australian War Memorial.
This painting depicts the killing of Aboriginals at Slaughterhouse Creek by British troops.

outposts were intimately connected back to their colonising oppressors. Hence colonial
legal regimes did not develop as separate isolated entities, but in collaboration the centralised systems of the colonisers.37 In short, colonies emerged over time as intricately
entangled hybrid societies incorporating European and non-European laws, values and
sensibilities.38
Building upon this understanding of intrinsic legal hybridity, it becomes clear why
the decolonised countries of the post-1945 era could not entirely excise their EuroAmerican colonial legacies. Moreover, these newly independent nations had in many
cases little choice but to adopt European forms of state building and the institutions,
bureaucracies and constitutions of their former masters. Such formalities were necessary
in order for new states to declare themselves liberal and modern and to participate
in national and international political and economic organisations such as the United
Nations. The rule of law exemplies the postcolonial dilemma that requiredand
still requiresself-determining nations to be complicit in the imperial strategies they
seek to overcome by copying and adopting Euro-American legal concepts and structures. As a result, many postcolonial states embody the contradictions and pathologies
of modern European states whose history of evolving democracy is built upon the
oppressive logics of imperialism, colonialism and racism.39

37

Merry, above n 1, 56988.

H Bhabha, The Location of Culture (London and New York, Routledge, 1994).
See Comaroff and Comaroff, above n 11; JA Byrd, The Transit of Empire: Indigenous Critiques of
Colonialism (Minneapolis and London, University of Minnesota Press, 2011); J Reynolds, Third World
Approaches to International Law and the Ghosts of Apartheid in D Keane and Y McDermott (eds), The
Challenge of Human Rights: Past, Present, and Future. (Cheltenham, Edward Elgar, 2012) 194218.
38
39

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Eve Darian-Smith
2 . P O S TC O L O N I A L L A W A N D G L O B A L I S A T I O N

Todays prevailing discussions about law and globalisation epitomise the ironies
presented by postcolonial law. For instance, the United Nations, World Bank, IMF
and other international legal arrangements all require that in order for a country to
participate in the global political economy, it must demonstrate commitment to, and
adherence with, the foundational values of Western law.40 In a postcolonial world, just
as in the colonial context of earlier centuries, there are always ongoing modications
and appropriations between all interacting communities and actors. One only has
to think of human rights to appreciate the extent to which its apparently universal
application has to be constantly translated, modied and vernacularised to t the
social, political and economic values of particular peoples living in localised places.41
Similarly, Euro-American law is not entirely impervious to the inuence of laws emanating from the global South, as illustrated by the adoption of the UN Declaration on
the Rights of Indigenous Peoples in 2007. However, despite the legal exchanges and
adaptations over time by both colonisers and their former colonies, the global dominance of Euro-American law in the early decades of the twenty-rst century is not
easily destabilised. And as a result, Euro-American law structurally institutionalises
the enduring asymmetries of power between the global South and global North and
pervasively fashions and legitimates legal practices, meanings and imaginations that
are European in origin.
One consequence of the global hegemony of Euro-American law is that within
much Western legal scholarship there lingers a deeply embedded assumption of the
global Norths legal superiority vis--vis the rest of the world. This is evidenced by a
majority of US and European scholars continuing to treat the rule of law as a discrete
entity and not as a dynamic product of historically contested and culturally informed
colonial/postcolonial interactions. Thus well into the twenty-rst century, in arguments
both for and against the signicance of the nation-state amidst the forces of globalisation, the dominance of Western legalism is largely taken as a given. As a result,
analysts of domestic and international law tend to look primarily at the privileged
domains of legal interaction amongst lawyers, judges, business people and entrepreneurs, and to ignore the perspectives of ordinary people whose culturally informed
normative understandings of law may be very different.42
One of the central elements of all postcolonial theories of law is the adoption
of a bottom-up view that does not ignore the contribution of the masses, and in
particular the contribution of the masses from the global South.43 The postcolonial

40
T Halliday and P Osinky, Globalization of Law (2006) 32 Annual Review of Sociology 44770,
45556.
41
SE Merry, Human Rights and Gender Violence: Translating International Law into Local Justice
(Chicago, University of Chicago Press, 2006); A Sarat (ed), Special Issue Human Rights: New Possibilities/
New Problems (2001) 56 Studies in Law, Politics, and Society; W Twining (ed), Human Rights, Southern
Voices: Francis Deng, Abdullahi An-Naim, Yash Ghai and Upendra Baxi (Cambridge, Cambridge University Press, 2009); Keane and McDermott (eds), above n 39; R Banakar (ed), Rights in Contexts: Law and
Justice in Late Modern Society (Farnham, Ashgate, 2010).
42
P Ewick and S Silbey The Common Place of Law: Stories from Everyday Life (Chicago, University of
Chicago Press, 1998).
43
B Rajagopal, International Law from Below: Development, Social Movements and Third World Resistance (Cambridge, Cambridge University Press, 2003) 402.

Postcolonial Theories of Law 257

perspective insists that as scholars, we need to be concerned with how globalisation
affects peoples in different ways and hence studies should include both the small cosmopolitan, aeroplane-hopping legal elite and the millions of peoples from various
classes, cultures, ethnicities and religions whose understanding of law may appear to
those embedded in a Western legal heritage as traditional, backward or inferior.
Postcolonial legal scholars are constantly vigilant against privileging a Euro-American
position and are willing to embrace a plurality of legalities that from the perspective
of most doctrinal legal scholars may not be easily understood or even initially recognised as law.

3. THEORIES OF LEGAL ORIENTALISM

The presence of postcolonial law requires that scholars and practitioners come to
terms with the fact that there is no universal legal code but rather a complex overlapping plurality of legal systems and culturally informed legal meanings.44 However,
given relations between law, capitalism and a global political economy, it is perhaps
not surprising that Western legal scholarship has largely ignored (some would argue
deliberately) the challenging presence of postcolonial law. In an attempt to move
beyond this deadlock, some scholars are coming at the problem of legal plurality
by talking about the issue of legal orientalism. These scholars take a long historical
view in arguing that legal orientalism has shaped the development of modern EuroAmerican law from the sixteenth century to the present.45 This argument forces us to
think about how racial and cultural biases continue to inform globally dominant legal
concepts and assumptions of Western legal superiority, and may in turn open up ways
to challenge or resist these dominant legal understandings of the world.46
What is legal orientalism? The concept of legal orientialism draws expressly upon
the work of Edward Said, who, as mentioned above, was a leading gure in postcolonial theory. Said coined the word Orientalism to refer to the ways in which European
societies throughout the nineteenth century constructed their identity and self-understanding through imagining their difference to the Arab and Muslim world.47 Essential
in this process was the Wests stereotyping of the Orient, which included a range of
Eastern cultures located in the Middle East as well as China, Japan and South Asia.
Orientalist discourses emanating from Europe were not exactly the same as those emanating from the United States because they were usually directed toward the Middle
East and China, while in the United States orientalist rhetoric was usually directed
to the Philippines and targets closer to home.48 These differences typically correlated
44

See Tamanaha et al, above n 15.

See Ruskola, above n 6; Falk, above n 6, 3954; A Anghie, The Evolution of International Law:
Colonial and Postcolonial Realities (2006) 27 Third World Quarterly 73953; P Haldar, Law, Orientalism
and Postcolonialism: The Jurisdiction of the Lotus Eaters (Abingdon, Routledge-Cavendish, 2007).
46
B de Sousa Santos and C Rodriguez-Gavarito (eds), Law and Counter-hegemonic Globalization:
Toward a Cosmopolitan Legality (Cambridge, Cambridge University Press, 2005).
47
See Said, above n 6; id, Culture and Imperialism (New York, Alfred A Knopf, 1993).
48
D Little, American Orientalism: The United States and the Middle East since 1945 Chapel Hill, University of North Carolina Press, 2008; D Brody, Visualizing American Empire: Orientalism and Imperialism
in the Philippines (Chicago, University of Chicago Press, 2010; R Francavigilia, Go East, Young Man: Imagining the America West as the Orient (Logan, Utah State University Press, 2011).
45

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Eve Darian-Smith

with a countrys imperial and colonial interests and often changed over time. However,
what united these various forms of orientalist rhetoric and material practice was the
assumed oppositional relations between an exoticised Orient and a civilised Occident.
Typically nineteenth-century orientalist discourses about the East were negative
and reinforced a presumed hierarchy of Western superiority and Eastern inferiority.
However, this was not always the case, as seventeenth- and eighteenth-century Enlightenment philosophers and missionary Jesuits often praised Chinese people for their
ingenuity and skill.49 However, by the nineteenth century European attitudes about
Asian peoples had crystallised into derogatory stereotypes.50 Europeans promoted
themselves as modern, rational, moral and lawful in contrast to a projection of Eastern
societies as premodern, irrational, immoral and lawless (see Figure 3). Hence, at the
same time that commentators such as Alexis de Toqueville were remarking upon the
emphasis given to law in the United States in the 1830s, historians and social theorists
were pointing to the lack of law in countries such as China, which was essentially
viewed as a backward, stagnant society in which lawlessness reigned.51 But as insisted
upon by Said, this did not mean that the Orient was essentially an idea, or a creation
with no corresponding reality.52 Rather, The Orient is an integral part of European
material civilization and culture with supporting institutions, vocabulary, scholarship, imagery, doctrines, even colonial bureaucracies and colonial styles.53
Legal orientalism served a variety of purposes. The most obvious of these was
that it helped conrm on the world stage the marginality of the East and the centrality of the imperial West. European and American scholars argued that Eastern
jurisprudential traditions were based on custom, ritual and religion, in contrast to the
so-called rational and scientic legal systems of modern Western nations. Declaring
non-Western legal systems inferior helped to justify European law and culture as a
superior civilisation, worthy of world leadership and dominance. Orientalist rhetoric
also provided the rationale for Western nations to marginalise Asian (and indigenous)
peoples within their domestic jurisdictions. For instance, in the United States orientalist
rhetoric provided the basis for the Chinese Exclusion Act (1882). This act suspended
Chinese immigration into the country and prevented Chinese people already living in
the United States from ever being granted citizenship. Under the act, it was argued that
Chinese people were non-legal subjects because they were incapable of understanding
US law and so deserved to be excluded from the new republic.54
Postcolonial legal scholars argue that the oppositional rhetoric between Eastern and
Western legal traditions was essential for the development of moden Euro-American
law. In other words, European law emerged historically through a perceived difference with non-Western legal concepts. According to the sociolegal scholar Duncan
Kennedy, international law must be understood in relation to a distinction between
the West and the rest of the world, and the role of that distinction in the generation
49
JS Gregory, The West and China Since 1500 (Basingstoke, Palgrave Macmillan, 2003); DE Mungello,
The Great Encounter of China and the West, 15001800 (Critical Issues in World and International History),
3rd edn (New York, Rowman & Littleeld, 2009).
50
Ruskola, above n 6, fn 175.
51
Ibid, 18187, 21315.
52
Said, above n 6, 5.
53
Ibid, 2.
54
JSW Park, Elusive Citizenship: Immigration, Asian Americans, and the Paradox of Civil Rights (New
York, New York University Press, 2004); Ruskola, above n 6, 1517.

Postcolonial Theories of Law 259

Figure 3. Execution Without Trial Under the Moorish Kings of Grenada. Henri Regnault, 1870.
Muse dOrsay. The title of this painting situates the image within an orientalist paradigm
whereby exoticised others are presented as lacking law and hence deemed intrinsically barbaric.

of doctrines, institutions and state practices.55 This perceived difference helped shape
the international legal system, which required the invention of legal primitivism to
legitimate the Wests universal aspirations.56
If one accepts this argument, then it follows that Western law has orientalist
assumptions historically built into its language, structure and procedures. This
suggests that contemporary Euro-American law, and the international legal system on
which it is built, remains to this day intrinsically and pervasively cultural and racially
biased.57 In short, legal orientalism endures in twenty-rst-century international law
55
D Kennedy, Review of the Rights of Conquest (1997) 91 American Journal of International Law
74548, 748.
56
See Anghie, above n 45; JT Gathii, International Law and Eurocentricity (1998) 9 European Journal
of International Law 184211; B Bowden, The Colonial Origins of International Law: European Expansion
and the Classical Standard of Civilization (2005) 7 Journal of the History of International Law 123; S
Wilf, The Invention of Legal Primitivism (2009) 10 Theoretical Inquiries in Law 485509.
57
See Pahuja, above n 6; L Westra, Globalization, Violence and World Governance (Leiden and Boston,
Brill 2011).

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Eve Darian-Smith

and global legal relations.58 Legal orientalism continues to fuel assumptions about the
global Norths legal superiority over the global South and has been deployed in a
range of national and international legal forums such as asylum and refugee claims,
as well as indigenous demands for recognition.59 Moreover, legal orientalism is evident
in the ways the global North interprets law in the Middle East, particularly in the
wake of the events of 9/11, and how Western nations view legal institutions in China,
Africa and Latin America. However, as the international legal scholar Teemu Ruskola
remarks, the point of recognising the presence of contemporary legal orientialism
is not to overcome ingrained cultural biasesan impossible taskbut rather to ask
why certain orientalist images of law developed, why they continue to resonate in
the contemporary world, and what can be done to dilute these negative stereotypes
that undermine international law and prevent sincere global dialogue and creative legal
collaboration.60

4. THIRD WORLD APPROACHES TO INTERNATIONAL LAW (TWAIL)

There is considerable overlap between scholars who talk about legal orientalism and
the intellectual movement associated with TWAIL. TWAIL is linked to a network of
critical international legal scholars that rst gathered at Harvard Law School in 1997.61
This network quickly expanded to include a range of practitioners and academics,
many of them born almost entirely in ex-colonies or part of their diasporas.62 The
primary objectives of scholars who identify with TWAIL are to critique the uses of
international law in perpetuating asymmetrical power relations between Europeans
and non-Europeans, rst and third worlds. As Gbenga Oduntan and others have
argued, the hegemonic forces of the West have operated collectively to underdevelop an
inclusive international law regime that empowers non-Western countries and regions.63
Moreover, TWAIL scholars are concerned with resistance by the oppressed to the normative operation of law, seeking to transform international law from being a language
of oppression to a language of emancipationa body of rules and practices that
reect and embody the struggle and aspirations of Third World peoples and which,
thereby, promotes truly global justice.64 Above all, TWAIL scholars are determined
58
D Otto, Subalternity and International Law: The Problems of Global Community and The Incommensurability of Difference in Darian-Smith and Fitzpatrick, above n 1, 14580.
59
SM Akram, Orientalism Revisited in Asylum and Refugee Claims (2000) 12 International Journal of
Refugee Law 740. B Golder, Law, History, Colonialism: An Orientalist Reading of Australian Native Title
Law (2004) 9(1) Deakin Law Review.
60
Ruskola, above n 6, 222.
61
See M Matua, What Is TWAIL? Proceedings of the 94th Annual Meeting of the American Society of
International Law (2000); JT Gathii, TWAIL: A Brief History of its Origins, its Decentralized Network,
and a Tentative Bibliography, Special Issue: Third World Approaches to International Law (2011) 3(1)
Trade, Law and Development; Chimni, above n 1.
62
L Eslava and S Pahuja, Beyond the (Post)Colonial: TWAIL and the Everyday Life of International Law
in P Dann and F Hanschmann, Post-colonial Theories and Law, Special Issue (2012) No 2 Journal of Law
and Politics in Africa, Asia and Latin America 197.
63
G Oduntan, International Law and the Discontented: How the West Underdeveloped International
Laws in A Parashar and A Dhanda (eds), Decolonization of Legal Knowledge in India (Routledge, India,
2009) 92126.
64
A Anghie and BS Chimni, Third World Approaches to International Law and Individual Responsibility
in Internal Conicts (2003) No 2 Chinese Journal of International Law 77; U Baxi, What May the Third

Postcolonial Theories of Law 261

to destabilise a normative legal orthodoxy that assumes the centrality of Western law
and as a consequence fails to take into account diverse legal contexts and experiences
that inform and constitute the dynamic eld of international/transnational/global law.
Among TWAIL scholars there is a divergence of opinion about the meaning and
use of the third world.65 This is, perhaps, not surprising given the vast diversity of
ways international law has played out over time across colonies/postcolonies in countries, regions and continents. Nevertheless TWAIL scholars are persistently committed
to using the terminology third world because of its explicit political framing of
the historical and contemporary oppositional relationship between the West and the
non-Western world. In this context, the third world does not refer to a monolithic
geographical reality but rather is a contingent referencing of a shared set of experiences and concerns by peoples and nations who share histories of subordination and
oppression.66 Using more vague terminology such as the global South is viewed as
diluting this political and ideological critique, in a way not dissimilar to minorities
in the United States often rejecting the terminology African American or Native
American and preferring instead the politicised terminology of Blacks and Indians.
Among TWAIL scholars there is also divergence on methodologies and priorities,
with some focusing on the histories of international law,67 or the limitations of human
rights discourse and its claims to universality.68 Other scholars are more obviously
activist in their leanings and concentrate on resistance to and anti-hegemonic struggles
against Western dominance and the development paradigm.69 And some scholars are
involved in all of these areas.70 However, as Obiora Okafor has argued:
despite its healthy differences and variegation, TWAIL scholars (or TWAILers) are solidly
united by a shared ethical commitment to the intellectual and practical struggle to expose,
reform, or even retrench those features of the international legal system that help create or
maintain the generally unequal, unfair, or unjust global order.71

Some critics of TWAIL highlight its limitations as a scholarly movement in an effort

not to discount its attack upon the hegemony of international law, but to sharpen
World Expect from International Law? Special Issue: Reshaping JusticeInternational Law and the Third
World (2006) 27 Third World Quarterly 71326.
65
R Bachand, Les Third world approaches to international law: Perspectives pour une approche subalterniste du droit international in E Jouannet, H Ruiz-Fabri and M Toufayan (eds), Droit international
etnouvelles approches sur le Tiers Monde,vol 32 (Paris, Socit de lgislation compare, 2013).
66
OC Okafor, Globalism, Memory and 9/11: A Critical Third World Perspective in F Johns, R Joyce
and S Pahuja (eds), Events: The Force of International Law (New York, Routledge, 2011) 23445, see
23536; K Mickelson, Rhetoric and Rage: Third World Voices in International Legal Discourse (1998) 16
Wisconsin International Law Journal 353.
67
M Koskenniemi, The Gentler Civilizer of Nations: The Rise and Fall of International Law 18701960
(Cambridge, Cambridge University Press, 2004); A Anghie, Imperialism, Sovereignty, and the Making of
International Law (Cambridge, Cambridge University Press, 2005). T Mahmud, Colonial Cartographies,
Postcolonial Borders, and Enduring Failures of International Law: The Unending Wars Along the AfghanistanPakinstan Frontier (2011) 36 Brooklyn Journal of International Law 1.
68
MW Matua, Savages, Victims and Saviors: The Metaphor of Human Rights (2001) 42 Harvard International Law Journal 20145.
69
Chimni, above n 8.
70
Rajagopal, above n 43.
71
OC Okafor, Newness, Imperialism, and International Legal Reform in our Time: A TWAIL Perspective (2005) 43 Osgoode Hall Law Review 17191, 17677. See also OC Okafor, Critical Third World
Approaches to International Law (TWAIL): Theory, Methodology, or Both? (2008) 10 International Community Law Review 37178.

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its capacity to affect change. So, for instance, Rmi Bachand points to the need to
explicitly fold into the analysis of global oppression other categories such as gender,
class, race, ethnicity and religion which are too often presumed to be embedded within
TWAILs third/rst world framing.72 As Bachand discusses, complex class, ethnic and
cultural interactions are often subsumed or overlooked within this binary model.73 As
a result, Bachand argues, TWAIL scholars fail to fully account for how intersectional
forces play out within Western and non-Western states, perhaps altering the terms of
the largely taken-for-granted oppositional relationship. For example, little analysis has
been done with respect to national elites within many postcolonial states who through
active engagement with Western capitalists may be complicit in the oppression of their
own peoples.
Other scholars within the TWAIL movement seek to push further the agenda of
deconstructing international law by rethinking its universalising potential. This move
is driven by the dilemma many TWAIL scholars and practitioners face as critics of
international law while at the same time continuing to have faith in its emancipatory
and reformist capacities.74 Against this impasse, Luis Eslava and Sundhya Pahuja argue
for a bottom-up ethnographic approach that explores the sites, spaces, performances
and things through which the international is constituted, but which are often not
recognised as such. These other sites of practice we have in mind are not necessarilyor even usuallyinternational in name, or imagined to be so in terms of
their vision, outlook, size or scale.75 These sites would be the more obvious sites of
courtrooms and customs agencies, as well as less obvious places and practices such
as visa processing agencies, border security mechanisms, environmental regulations,
urban zoning, and censorship of mobile phone and digital communications. As Eslava
and Pahuja go on to say:
Once we consider this plethora of spacesor new jurisdictionsin which international
law is being materialized today, it becomes clear that we cannot conne our interrogations
to only those sites that present themselves as international. The increasing number of
jurisdictional forms that are now being created or recreated, in the name of good governance,
sustainability or economic competitiveness deserve detailed attention: one capable of linking
the existence and operation of these spaces to the ways in which the current global order is
unfolding in the everyday lives of people across the world.76

Eslava and Pahujas call for an ethnography of international law that explicitly seeks to
engage with the regulatory proliferation of international law in the lives of ordinary
people suggests a signicant contribution in furthering the political objectives of
TWAIL scholarship.77 First and foremost, it suggests new ways for scholars to appreciate the small moments of daily resistance to localised manifestations of international
regulatory power. In this sense, Eslava and Pahujas call for an ethnographic exploration of the universality of international law refers to the universality of everyday
forms of resistance, revolution and struggle by oppressed peoples against the hege-

72

Bachand, above n 65.

For a notable exception see Otto, above n 58.
See Anghie, above n 45, 752.
75
Eslava and Pahuja, above n 62, 218.
76
Ibid, 21819.
77
Ibid, 221.
73
74

Postcolonial Theories of Law 263

monic power of international law. Signicantly, this approach seeks to overcome the
contradictory impasse described above by widening and deepening TWAIL critiques
of international legality while at the same time retaining optimism about international
laws emancipatory potential and capacities to effect change.
Personally, as a scholar deeply sympathetic to TWAIL, it seems to me that both
the call for greater intersectionality and for an ethnographic methodology aid critical
approaches to international law in dealing with the challenges of the twenty-rst
century. As discussed briey in the introduction, the geopolitical realities of our contemporary world have moved beyond a state-centrist system to include a range of
non-state actors above and below the level of the nation-state. Unfortunately, much
analysis of international law remains stuck in a modernist worldview that speaks more
to the second half of the twentieth century than to the current moment. This worldview prioritises a states legal interrelations with other states and fails to pay sufficient
attention to the ever-expanding eld of NGOs, volunteer organisations, religious and
ethnic regional affiliations, and the mass movement of peoples in search of greater
human security. Together these emerging non-state actors and global forces challenge
the core principles of international law in profound ways. The calls for greater intersectionality and for an ethnographic methodology provide ways to side-step these
challenges by decentring the state and emphasising new sites, locales, objects and
processes through which international law is constituted and made meaningful to a
diverse range of people.

5. CONCLUDING COMMENTS

One thing that is certainwhether one frames asymmetrical power relations between
the global North and South in terms of legal orientalism or critical approaches to
international lawis the need to move past a modernist hierarchy of legal authority
based on simplistic binaries of rational versus non-rational and civilized versus
uncivilized legal systems. Deorientalising and decolonising the twenty-rst centurys
normative global legal order and stereotyped legal divides is seen, by some scholars
and analysts at least, as ultimately necessary for the stability and peace of global,
international, national, regional and local relations.78 As the Nigerian legal scholar
Ikechi Mgbeoji has eloquently stated, the North and South are mutually vulnerable,
sharing a common destiny, which cannot be realized unless notions of a civilized self
and barbaric other are abandoned.79 Moreover, with the deorientalising of law, the
naturalised centrality and superiority of a Euro-American legal perspective would be
dislodged and necessarily provincialised, borrowing Chakrabartys terminology discussed above.
Postcolonial theorists offer some insights as to how to get past historically structured racialised divides between peoples and communities. The political theorist
Duncan Ivison in his book Postcolonial Liberalism (2002) argues for the need to
78
See Santos (ed), above n 7; Y Onuma, A Transcivilizational Perspective on International Law. Hague
Academy of International Law (Leiden and Boston: Martinus Nijhoff Publishers, 2010).
79
I Mgbeoki, The Civilized Self and the Barbaric Other: Imperial Delusions of Order and the Challenges of Human Security in R Falk, B Rajagopal and J Stevens (eds), International Law and the Third
World: Reshaping Justice (London and New York: Routledge-Cavendish, 2008) 15165, 152.

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create a genuine multilogue not just between the state and indigenous peoples, but
between them and other cultural and national groups as well.80 In his arguing that
indigenous peoples can make considerable contributions in the thinking of how to
build more inclusive societies, Ivison notes that this will take time and a rm commitment to the ideal of a political order in which different national groups, with different
modes of belonging and different conceptions of the good and the right, nevertheless
share a willingness to live under political arrangements that reect this plurality.81
Ivisons argument underscores the political challenge of a postcolonial perspective
with respect to law. In order for there to be a context-sensitive and embedded form
of public dialogue and deliberation,82 we must rst rethink the prevailing Eurocentric,
state-bound understanding of what constitutes law and what processes are deemed
legal. In other words, embracing postcolonial legal theories and coming to terms with
deeply problematic histories of colonial oppression that endure in todays new geopolitical congurations is perhaps the rst step in a process toward building a global
legal future that is more responsible, equitable and inclusive of humanity, however
dened.

80

D Ivison, Postcolonial Liberalism (Cambridge, Cambridge University Press, 2002) 163.

Ibid, 166.
82
Ibid, 163.
81